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The 20-week reflection period in divorce explained.

What is the 20-week reflection period in divorce?

The Divorce, Dissolution and Separation Act 2020 was one of the most important pieces of legislation in the last 50 years. It fundamentally revised the legal process in England and Wales for married couples wishing to obtain a divorce, and for civil partners wishing to dissolve their civil partnership. The three main changes introduced by the Act included:

  • The removal of the requirement to satisfy the Court that the legal test of irretrievable breakdown was met by citing in the divorce petition one or more of five “facts” and replacing it with a single ground of the irretrievable breakdown with no need to prove fault or a period of separation (the no-fault divorce).
  • The introduction of a new mandatory 20-week reflection period (also known as a “cooling-off” period) between the start of divorce or dissolution proceedings and when the application to the Conditional Order stage (previously called Decree Nisi) can be progressed. The Conditional Order is the stage where the Court accepts the entitlement to a divorce or dissolution.
  • The introduction of an option where a couple could apply for a joint divorce or dissolution where their decision to end their relationship was a mutual one.

The essence of the 20-week reflection period in the divorce process is that a Court cannot make a Conditional Order until the applicant, or in the case of joint applicants, has or have confirmed to the Court that they want their application for divorce or dissolution to continue. An applicant or joint applicants cannot provide this confirmation until at least 20 weeks have elapsed since the start of the proceedings. The 20-week refection period starts from the date the divorce/dissolution application is officially issued by the Court.

Does the 20-week reflection period in divorce apply to dissolution of civil partnership?

The 20-week reflection period applies equally to cases of divorce, and to dissolution of civil partnerships.

What is the purpose of the 20-week reflection period in divorce?

The purpose of the 20-week reflection period is to reduce conflict and to ensure the decision to end a marriage or civil partnership is a considered one. The 20-week reflection period allows a separating couple time to reflect, consider their situation, receive legal advice, and potentially turn back the process.

Where reconciliation is not possible, the 20-week period provides the couple time to agree important arrangements for the future – such as those involving children, finances, and housing and property.

Can the 20-week reflection period in divorce be reduced?

Judges can reduce the timeframe in exceptional circumstances such as where one of the couple is terminally ill and there is a concern that the divorce or dissolution may not be concluded prior to that person’s death.

Section 1(8) of the Matrimonial Causes Act 1973 states that the Court, dealing with a particular case, can shorten the 20-week period. The legislation however does not provide a list of reasons why an exception can be made, and each case would be considered on its own facts and merits.

In the first reported case of its type a Conditional Order was made 10 weeks after the divorce application was issued as the applicant had life-limiting health issues.

What are the criticisms of the 20-week reflection period in divorce?

Previously with both parties’ cooperation most divorces and dissolutions could be completed within 4-6 months. The criticism of the 20-week reflection period is that the timeframe to end a relationship has now increased significantly to 6-8 months.

It could be argued that most people will already have engaged in considerable reflection and consideration before making the decision to end their relationship. Accordingly, does an additional period of reflection really assist a couple who have already decided that their relationship has ended and cannot be saved?

Another criticism is that a Court cannot approve a financial settlement in a Consent Order, or make an Order in contested financial proceedings, until the Conditional Order is pronounced. Therefore, where a couple have agreed a financial settlement, they must wait at least 20 weeks until a Conditional Order is made for that agreed settlement to become binding. This does not help a couple who wish to achieve financial certainty and move on with their lives.

For many couples it is also unwise and risky to implement the terms of a financial agreement before a financial Order has been approved and sealed by the Court. For some people waiting a minimum period of five months to receive an approved financial Consent Order could undermine the agreement and result in house buyers dropping out of a purchase, or a mortgage offer expiring.

The current only solution to this problem is to prepare a Separation Agreement or both parties signing a draft Consent Order.

As we approach two years since the introduction of the new divorce law, it is clear that some refinement to the ‘No Fault’ divorce legislation may need to happen such as reducing the 20-week reflection period where a couple are in complete agreement that their relationship has irretrievably broken down, and/or where a financial agreement has been reached and has been incorporated into a Consent Order. Further commentary can be found in this article: Breaking the blame game.

Frequently asked questions

How long is final stage of divorce?

The final stage of divorce or dissolution is that an applicant or applicants must wait a further period of six week from the date of the Conditional Order until they can apply for the Final Order (previously called the Decree Absolute). The Final Order legally ends the marriage or civil partnership.

What is the minimum time for divorce in the UK?

The absolute minimum time for a divorce or dissolution in the UK is 26 weeks. This takes into account the 20-week reflection period and the 6 weeks waiting period between the Conditional Order and Final Order. It would be rare to achieve a divorce or dissolution in this timescale as it does not include times for service or Court waiting times. A more realistic time is 30-35 weeks.

Can I apply for a Conditional Order before 20 weeks?

Unless there are exceptional circumstances, you would normally need to wait the 20 weeks from the start of the proceedings before you could apply for the Conditional Order.

 

 

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